The JAG Memos

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Spencer Ackerman wrote an important piece yesterday about the other torture memos that haven’t yet garnered much attention, and his story’s worth highlighting. Recently, the Senate, led by Lindsay Graham (R-SC), brought to light some recently-declassified documents showing that, back in 2003, senior military lawyers—Judge Advocate Generals (JAGs)—had very vigorously opposed the Bush administration’s interrogation policies. These aren’t just any lawyers. As Sen. Graham puts it, “These are not… people who are soft on terrorism, who want to coddle foreign terrorists. These are all professional military lawyers who have dedicated their lives, with 20-plus year careers, to serving the men and women in uniform and protecting their Nation.” Yet the White House basically swept their concerns aside. Here’s Ackerman:

The JAGs were commenting on the report of a Pentagon working group, convened in January 2003, to review interrogation policy changes. But a common theme in their memos is the concern that the legal rationales employed by the working group were imported wholesale from the Justice Department’s Office of Legal Counsel (OLC)–whose writing on the question of torture was memorably described by Yale Law School Dean Harold Koh as “perhaps the most clearly legally erroneous opinion I have ever read.” (What the Justice Department lawyers actually gave to the Defense Department remains, inexplicably, classified, despite months of congressional demands.)

Major General Thomas Romig, the Army JAG, essentially concurred. He denounced OLC’s central contention–that any law restricting the president’s ability to wage war is unconstitutional–writing caustically: “I question whether this theory would ultimately prevail in either the U.S. courts or in any international forum. … This view runs contrary to the historic position taken by the United States Government concerning such laws and, in our opinion, could adversely impact DOD interests worldwide.” Brigadier General Kevin Sandkuhler, the Marine JAG, was more specific about how adopting OLC’s argument would harm the military: “Comprehensive protection is lacking for DOD personnel who may be tried by other nations and/or international bodies for violations of international law.”

But the JAGs raise an even more fundamental argument, one that speaks to the heart of what has made the United States one of the greatest military powers in history: the rigorous, professional discipline instilled in every enlisted man and officer as part of post-Vietnam reforms. The success of these reforms has made it easy to take such excellence for granted, but barely a generation ago, the armed services had to deal with on-base racial gangs, and even killings within the chain of command. “U.S. Armed Forces are continuously trained to take the legal and moral ‘high road’ in the conduct of our military operations regardless of how others may operate,” wrote the Air Force’s deputy JAG, Major General Jack Rives. “Approving exceptional interrogation techniques may be seen as giving official approval and legal sanction to the application of interrogation techniques that U.S. Armed Forces have heretofore been trained are unlawful.” Sandkuhler starkly warned about a breakdown in uniformed “pride, discipline and self-respect.”

The memo from the Navy’s JAG, Rear Admiral Michael F. Lohr, is perhaps the most forceful. Eschewing legalisms, Lohr bluntly cautioned that use of the new interrogation techniques would cost the military its other hard-won post-Vietnam commodity: public support. “More broadly,” Lohr asked, “while we may have found a unique situation in GTMO where the protections of the Geneva Conventions, U.S. statutes, and even the Constitution do not apply, will the American people find we have missed the forest for the trees by condoning practices that, while technically legal, are inconsistent with our most fundamental values?” He correctly identified public support as essential to the war effort: “How would such perceptions affect our ability to prosecute the Global War on Terror?” It’s a testament to the strong social bonds between the military and the public that such support hasn’t significantly eroded–just as it’s a testament to the resilience of military professionalism and values that the abuses the JAGs foresaw are still attributable to only a tiny fraction of the men and women fighting the war on terror.

The New York Times has a bit more, mostly perfunctory, coverage today. Don’t expect much beyond that. The full memos can be found here. Meanwhile, Mary Lederman notes that there’s absolutely no reason why these documents should have stayed classified for the past two years, except that they cast the Bush administration’s penchant for torture in a bad light, and might’ve thrown a bit of a wrench in those re-election plans.

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